New York City's Asbestos Regulation Revised. Again!

On April 28th, 2022, New York City published a notice of adoption in the City Record for the revisions to the Asbestos Control Program Rules and Regulations (RCNY Title 15 Chapter 1).  These revisions will become effective on May 28th, 2022.  Of course, there are some significant changes that asbestos contractors, asbestos consultants, & asbestos investigators should be prepared for.  These changes include:

NYCDEP will need to revise the confined space standard reference to 1926 Subpart AA Confined Spaces in Construction

• New wording regarding making a false statement/documents not only to the New York City Department of Environmental Protection (NYCDEP), but to any city agency or any individual related to an asbestos project, asbestos surveys, or any document required to be filed under these rules.
• The addition and subtraction of some definitions:
• Airtight was added which "means secured and sealed utilizing 6 mil plastic sheeting and tape to make a barrier through which no air, dust or debris can be transmitted."  Not sure we like this definition.  No air can be transmitted, with just plastic and tape?
• ARTS E-File was added.  Which is the web-based filing system that NYCDEP uses to file all things related to asbestos projects.
• Asbestos Project Air-Sampling Technician, Confined Space, Occupational Safety and Health Administration (OSHA) Construction Safety and Health card, and warning line system were added. 
• Bound Notebook was subtracted, but a Permanently bound log was added.  "Permanently bound log shall mean a log consisting of sequentially numbered sheets of paper, pre-printed or handwritten, that is permanently secured to the front and back covers by stitching, glue, and binding that creates a strong and lasting bond and makes readily discernible the removal or insertion of sheets after the log’s first use."  We added the bold section to point out that a composition notebook no longer can be used.  Since they are not glued.  We did a quick search and found that "Smyth Sewn (also known as Section Sewn)" would meet this requirement, we're sure there are others.
• The definition for disturb has been modified and "shall mean any activity that disrupts, impregnates, or strips the matrix of asbestos-containing material (ACM) or presumed asbestos-containing material (PACM), or that generates debris, visible emissions, or airborne asbestos fibers from ACM or PACM. This includes but is not limited to the removal, encapsulation, enclosure, renovation, repair, or cleanup of ACM or PACM."  Of course, when we read this we had to whip out our Thesaurus (dusting it off or of course, we could have googled it, sorry we're a little old school) to see why NYCDEP uses the word impregnate (obviously it would not be our first impression of the word, which leads to many very bad images)!  The second definition for impregnate is to soak or saturate (something) with a substance.  Interesting wonder if there might have been a better word to use?
• The definition of the log was changed to "shall mean a permanently bound official record of all activities that occurred during the project.  One log must be maintained by the abatement contractor in accordance with section 1-92 Work Place Entry and Exit Procedures, and one log must be maintained by the air monitoring company in accordance with section 1-37 Sampling Equipment Requirements."
• They added "Project monitor’s report. “Project monitor’s report” shall mean the "Form ACP-15" that the project monitor is required to submit for partial or complete asbestos project closeout as approved by NYCDEP."
• Variances must be made through the ARTS E-File System.  Submitted by a project designer and authorized by the building owner or authorized agent.  Including the description of the deviation, and a description of the hardship preventing the required procedures from being employed.  A sketch is no longer allowed it must be a drawing. 
• The addition of "any abatement activity to be performed within a work area located in a confined space" to the requirements of when an asbestos abatement permit is required.  This requires a Work Place Safety Plan (WPSP).  They added that the asbestos abatement permit would expire upon the expiration date of the asbestos project notification ACP-7 form.  In addition, sections in "Failure to terminate asbestos abatement permit within year" were deleted related to extending the permit.  Regarding the letter from the registered design professional finding additional ACM on a project, it must be filed through the ARTS E-File.
• Emergency project notifications must be filed through the ARTS E-File system (instead of telephone communication),  If the applicant does not have a valid ARTS E-File account, then telephone notification shall be made to 311.  The cover letter that accompanies the ACP-7 Form must be from the building owner or their authorized agent and must include:
• the nature of the emergency;
• a description of the scope of work.  With respect to projects commenced under this section, the department, based on an inspection by the department and other relevant agencies, may exempt the project from the requirements of 15 RCNY § 1-26 Asbestos Abatement Permits.
• The Certified Asbestos Investigators (CAI) must respond to the NYCDEP’s request for inspection within fourteen (14) business days and provide a date, time, and location for an inspection which is within 21 days of the date of the request. Failure of the investigator to either respond to the NYCDEP’s request for an appointment or provide a date, time, and address for an inspection will result in the suspension of the CAI's certificate until such appointment is completed and these records are made available for inspection.
• Chain of custody forms (regarding the air sampling) are now part of the project record and shall be kept on-site at all times.  The chain of custody forms, along with the project air sampling log, and a copy of the project monitor's report is added to the records the asbestos abatement contractor shall maintain for at least 30 years after the end of the project.
• Changes to air sampling requirements include cassettes that "must be labeled with sample identification numbers prior to the commencement of air sampling".  Air sampling assembly must be checked for leaks and occlusions "throughout the shift and documented in the project air sampling log."  The project air sampling log must be a "permanently bound book."  Added to the notes of the air sampling table "Transmission Electron Microscopy (TEM) is required in schools in accordance with the Environmental Protection Agency's (EPA) Asbestos Hazard Emergency Response Act (AHERA) regulations." and removed from the notes was "or the pre-abatement area sampling result(s) for interior projects where applicable."  In addition, the following statement was added wherever multiple samples are required "which must be representative of the work area. The air samplers must be placed separate and apart from one another and must not be grouped together."  For clearance sampling "samplers shall be no further than (vs approximately) 50 feet from the entrance to the work area."
• During abatement air sampling for minor projects was added: "For minor projects employing glovebag or tent procedures, one area sample shall be taken outside the glovebag or tent, not more than five feet from the uncontaminated entrance to the glovebag or tent."  According to NYCDEP, this was added to be consistent with NY State (NYS) requirements regarding air sampling for minor projects.  Well, NYS Department of Labor Industrial Code Rule 56 (NYSDOL ICR56) does not require air sampling during abatement for minor projects.  It does require clearance upon glovebag failure or loss of integrity or tent failure or loss of integrity or incidental disturbance projects, but not during abatement.  In fact, this change would require clearance of the minor project if the during abatement sampling result exceeded 0.01 fibers per cubic centimeter (f/cc), or if there were visible emissions detected during the project, or if the work area to be reoccupied is an interior space at a school, healthcare, or daycare facility.
• They modified the section Materials and Equipment, with "Ladders or scaffolds of sufficient dimension and quantity shall be available so that all work surfaces can be easily and safely reached by inspectors and asbestos handlers."  Asbestos handlers were added to the section.  In addition, these subsections were added:
• Ladders: Where ladders are used to access or reach work surfaces for the conduct of abatement activities, care must be taken to prevent breaching of the containment areas and the ladder’s integrity must be maintained to ensure safety.  Ladders and their use shall comply with OSHA 29 CFR 1926. Subpart X Ladders 1926.1053.
• Scaffolds: Where scaffolds are used to reach work surfaces or for the conduct of abatement activities, scaffold joints and ends shall be sealed with tape to prevent the incursion of asbestos fibers. Scaffolds and their use shall comply with OSHA 29 CFR1926. Subpart L Scaffolds 1926.450; 451 and 452.
• Walking Surfaces. Walking and working surfaces shall be protected from tripping or stepping into or through holes or openings, including skylights, by covers secured to the surface in accordance with OSHA Section 29 CFR 1926.501.  According to NYCDEP, they added this section due to a recent fatal accident at an asbestos work site.  We did a search and it seems this accident may have happened on November 1, 2021.  It was reported by the NYC Department of Buildings (NYCDOB) as the Gowanus Roof Fall. Workers were performing asbestos abatement work on the roof of a three-story building at 289 3rd Avenue, Brooklyn.  One of the workers left the work area to use the restroom and apparently fell through a 15-inch gap between the building and the supported scaffold, falling approximately 25 feet from the roof onto a first story set back in the rear of the building. The worker died of his injuries.  OSHA did an inspection of this accident and issued 3 scaffold violations and 2 ladder violations for a total of $40,604 in fines, which are being contested.
• The abatement contractor's log requirements were moved to section 1-92 Work Place Entry and Exit Procedures.  "The abatement contractor’s log shall be permanently bound and at a minimum shall identify fully the building  owner, agents, contractor(s), the project, each work area and worker respiratory protection employed, and other pertinent information including daily activities, cleanings and waste transfers, names and certificate numbers of asbestos handler supervisors and asbestos handlers; results of inspections of decontamination systems, barriers, and negative pressure ventilation equipment; summary of corrective actions and repairs; work stoppages with reason for stoppage; manometer readings at least twice per work shift; daily checks of emergency and fire exits and any unusual events."
• Personal protective equipment shall be provided by the abatement contractor.
• NYCDEP added the following to the workplace entry and exit procedures:  "When abatement activities are located in a confined space the contractor must comply with all the requirements set forth in OSHA 29 CFR 1910.146.and 1926.21(a) and (b)."  This is very interesting because OSHA regulations 1910.146 do not apply to the construction industry.  Its 1926 Subpart AA Confined Spaces in Construction applies to the construction industry.  Read our blog post regarding the Confined Spaces in Construction standard and its requirements (very similar to the General Industry standard 1910.146, but with specific differences related to construction and technology that is available today that was not available when the 1910.146 came out). 
• An interesting change is that chutes can only be used inside a work area that is under negative pressure.  Deeming that chutes to transport asbestos from rooftops is unsafe.  We wonder what evidence they have for this?
• Encapsulation and Enclosure procedures must be conducted with the full containment of the work area or the tent procedures.  Some other modifications.
• Glovebag procedures now require "A visual clearance inspection must be conducted by the asbestos handler supervisor and project monitor after the work area dries, to ensure the absence of ACM residue or debris in the work area. The clearance inspection must be documented in the abatement contractor’s log and the project air sampling log."
• Added air monitoring in accordance with the air monitoring sections 15 RCNY §§ 1-31 through § 1-45 was added to the Tent procedures section, along with "A visual clearance inspection must be conducted by the asbestos handler supervisor and project monitor after the work area dries, to ensure the absence of ACM residue or debris in the work area. The clearance inspection must be documented in the abatement contractor’s log and the project air sampling log."
• Foam Procedure for Roof Removal changes include the establishment and maintenance of a warning line system on the roof throughout the project, the contractor must comply with OSHA 1926 Subpart M, specifically 1926.501 Duty to have fall protection & 1926.502 Fall protection systems criteria and practices, exterior or interior chutes are prohibited to transport asbestos-containing roofing material (ACRM) from the roof to lower floors, and visual inspection must be documented in the abatement contractor's log and project air sampling log.
• Foam/Viscous Liquid Use in Flooring Removal changes includes visual inspection must be documented in the abatement contractor's log and project air sampling log.
• Abatement from Vertical Exterior Surfaces changes include the contractor must comply with OSHA 1926 Subpart M, Fall Protection, 1926 Subpart L, Scaffolds, and the NYC Building code, change to sidewalk bridges is "Sidewalk bridges in the restricted area shall be covered with two layers of fire retardant 6-mil plastic, placed over and secured to the bridge, spread across the full width of the bridge and up the interior walls of the bridge so the walls are fully plasticized" and the clearance inspection must be documented in the abatement contractor's log 
• Controlled Demolition with Asbestos in Place has been changed "A condemnation order or declaration issued by the NYCDOB or a signed and sealed condemnation letter from the Owner’s registered design professional which has been acknowledged by the NYCDOB must be submitted to the NYCDEP through the ARTS E-File system.  A site-specific scope of work identifying the steps to control asbestos emissions during the controlled demolition must be submitted and approved by NYCDEP prior to the commencement of work.
• The final cleaning procedures were changed to add "After the plastic barriers on the walls and floors have been removed, a third cleaning shall be performed of all surfaces in the work area by wet cleaning and/or HEPA vacuuming. A minimum of a one-hour waiting period shall be conducted to allow the work area to dry prior to the visual inspection by the air monitor and asbestos supervisor."

No roof parapet walls will require guardrails on asbestos roof removals

As you can see there are a number of changes some significant and some minor.  NYCDEP regulation first went into effect in 1985.  The first changes were made in 2011, and then additional changes were made in 2019.  Here we are three years later with more changes which they held a public hearing on December 23, 2021, and announced through the ARTS E-File system.  It seems they were reluctant to change the regulations much in the past (1985 to 2011) but now seem more than willing to make changes when they feel it's necessary.  Unlike, NYSDOL which has wanted to modify ICR56 since 2011 and still has not been able to.

    

Worker's Memorial Day, Honoring Those Who Died On The Job. What About Those Who Died Because of Their Job?

Worker’s Memorial Day is dedicated to those who lost their lives on the job. Every year, on April 28, people across the country and around the world pay their respects to the thousands killed each year on the job and the millions more who suffer serious occupational injuries and illnesses on the job and recognize the impact these tragic losses have on families, co-workers, and communities.  According to Wikipedia, in 1989 the AFL-CIO declared April 28 Worker's Memorial Day.  April 28 is the day the Occupational Safety and Health Act of 1970, went into effect and the day the Occupational Safety and Health Administration (OSHA) was formed in 1971.  In 1991, the Canadian parliament passed an Act respecting a National Day of Mourning for persons killed or injured in the workplace, making April 28 an official Workers' Mourning Day.  In 2001 the International Labour Organization (ILO), part of the United Nations (UN), recognized Workers' Memorial Day and declared it World Day for Safety and Health at Work, and in 2002 the ILO announced that April 28 should be an official day in the UN system.

According to ADAO, over 10,000 people are dying from asbestos exposure each year! 

As we see all the events held and all the statements made this day one theme seems to repeat over and over, workplace injuries and illnesses remain unacceptably high, especially the ones that happen now!  Every theme is to reduce injuries, but very few if any mention the biggest killer occupational disease.  The Center for Construction Research and Training (CPWR) is one of the few organizations that even discusses occupational disease.  But don't look for asbestos exposure on that website, for example, the construction worker exposure control database that they manage only lists silica, noise, welding fumes, and lead.  What about asbestos, mercury, or polychlorinated biphenyls?  But you can find oodles of information on falls.  Let's look at OSHA and how they handle occupational diseases.  They are the prime regulatory agency for occupational diseases.  Secretary of Labor Marty Walsh, OSHA is one of the agencies under the Department of Labor, yesterday issued a statement on Workers Memorial Day it is much longer than the following excerpt, but this statement and what it, and the whole statement, is lacking makes my point:

 “In the past year, nearly 5,000 workers left home for work and did not return. None knew that going to work would cost them their lives. While each life lost is a tragedy, those taken in incidents that might have been prevented – had their employers followed required safety and health standards – are especially painful for their families, their co-workers and friends, and their communities."

No recognition for workers who died from their job, but died after they were no longer working, though in Secretary of Labor Marty Walsh's video presentation he mentions his father being exposed to asbestos and having lung problems. Even in the Department of Labor's video on the Worker Memorial Day Program, only Assistant Secretary for Labor Chris Williamson the director of the Mine Safety and Health Administration (MSHA) even mentions occupational diseases when he mentions silica. 

While in the United Kingdom (UK) a new permanent memorial commemorating the lives of all the people who died as a result of exposure to asbestos has been unveiled in Barking and Dagenham at a special remembrance ceremony yesterday on International Workers Memorial Day.  The AFL-CIO annually releases a report "Death on the Job: The Toll of Neglect" that details the current state of safety and health protections for America’s workers. The 31st edition of the report states:

"Workplace hazards kill and disable approximately 125,000 workers each year—4,764 from traumatic injuries, and an estimated 120,000 from occupational diseases. Job injury and illness numbers continue to be severe undercounts of the real problem."

This report indicates that occupational diseases are 24 times more likely to occur than traumatic injuries!  Realize we are not saying safety is not important, but considering asbestos, silica, and welding fume exposures are still going on, just to name a few what is being done for these workers!  On May 2-6, 2022 OSHA will sponsor a National Safety Stand-Down to Prevent Falls in Construction.  Fatalities caused by falls from elevation continue to be a leading cause of death for construction employees, accounting for 351 of the 1,008 construction fatalities recorded in 2020 (BLS data).  If occupational diseases are typically 24 times more likely, then we would argue that falls are not the leading cause of death in construction.  Why is there no stand-down day for these occupational diseases?  Except for heat illness or noise, there are no stand-down days for the rest of the occupational diseases.  According to  OSHA's statistics, from October 2020 to September 2021 OSHA performed 15 inspections related to the construction asbestos standard (1926.1101) for 80 citations while for the same period OSHA performed 5,325 inspections with 5,463 citations for the duty to have fall protection in the construction industry (1926.501).   

Linda Reinstein of ADAO and Angelo Garcia, III of FED at the PACNY Environmental Conference

There is one bright cloud regarding recognizing those workers who die related to asbestos exposure but because they died after their retirement.  The Asbestos Disease Awareness Organization (ADAO) is the largest independent asbestos victims’ organization in the United States. Founded in 2004 to give asbestos victims and concerned citizens a united voice, to raise public awareness about the dangers of asbestos exposure, and to work towards a global asbestos ban.  The ADAO sponsors an annual International Conference on Asbestos Awareness and Prevention, and has annually (this year is the 17th) lobbied the U.S. Senate to pass a resolution to designate April 1- 7 as "National Asbestos Awareness Week", which coincides with "Global Asbestos Awareness Week".  Linda Reinstein is one of the founding members of ADAO and has told her story regarding Alan's, her husband, exposure to asbestos.  It's these stories that don't make it into the injury and illness statistics.  These stories are the ones that are being left out on Worker's Memorial Day and we must do better!